13-2620

Singh v. Lynch 

BIA

A072 409 681

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 27th day of April, two thousand sixteen.

PRESENT:

ROBERT A. KATZMANN,

Chief Judge,

REENA RAGGI,

CHRISTOPHER F. DRONEY,

Circuit Judges.

_____________________________________

BARIJINDER SINGH,

Petitioner, 

 v. 13-2620

NAC 

LORETTA E. LYNCH, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Viney Gupta, Orange, CA.

FOR RESPONDENT: Joyce R. Branda, Acting Assistant

Attorney General; Kiley Kane, Senior

Litigation Counsel; Jeffrey R.

Meyer, Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED in part and in part DISMISSED.

Barijinder Singh, a native and citizen of India, seeks

review of the June 12, 2013, decision of the BIA denying his

motion to rescind and reopen. In re Barijinder Singh, No.

A072 409 681 (B.I.A. June 12, 2013). We assume the parties’

familiarity with the underlying facts and procedural

history.

When, as here, an alien seeks both rescission of an in

absentia deportation order, as well as reopening of

deportation proceedings based on new evidence, the motion is

treated as comprising distinct motions to rescind and to

reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.

2006). We review the BIA’s denial of a motion to rescind

and a motion to reopen for abuse of discretion. Maghradze

v. Gonzales, 462 F.3d 150, 152 (2d Cir. 2006). “An order

entered in absentia in deportation proceedings may be

rescinded only upon a motion filed: (1) [w]ithin 180 days

after the date of the order of deportation if the alien

demonstrates that the failure to appear was because of

exceptional circumstances beyond [his] control . . .; or (2)

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[a]t any time if the alien demonstrates that he or she did

not receive notice . . . .” 8 C.F.R. 

§ 1003.23(b)(4)(iii)(A); see also 8 U.S.C. § 1229a(b)(5)(C). 

A claim of “ineffective assistance of counsel can constitute

an ‘exceptional circumstance’ warranting the reopening of a

deportation order entered in absentia.” Aris v. Mukasey,

517 F.3d 595, 596 (2d Cir. 2008) (citation omitted). 

Here, the BIA did not abuse its decision in declining

to revisit Singh’s assertion that he had not received

notice, because it had previously considered and rejected

that claim, and Singh did not petition for review of that

decision. See U.S. v. Quintieri, 306 F.3d 1217, 1225 (2d

Cir. 2002). Regardless, notice was properly sent to Singh’s

counsel of record by certified mail. See Song Jin Wu v.

INS, 436 F.3d 157, 162 (2d Cir. 2006). 

Moreover, the BIA reasonably ruled that, even if it

were to consider Singh’s ineffective assistance of counsel

claim, equitable tolling would be inappropriate because

Singh failed to make the required showing that he acted with

diligence in pursuing that claim during the 17-year period

he sought to toll. See Jin Bo Zhao v. INS, 452 F.3d 154,

156-57 (2d Cir. 2006). Singh was clearly aware of his 1995

in absentia deportation order by at least 2001, when he

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filed his first motion to rescind, but failed to raise his

ineffective assistance claim for another twelve years,

during which time he filed multiple additional motions to

reopen. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.

2008) (holding that petitioner failed to exercise due

diligence when, after he should have known of his initial

counsel’s ineffectiveness, he waited fourteen months to

pursue the claim). Accordingly, the BIA did not abuse its

discretion in denying Singh’s motion insofar as he sought

rescission.

An alien seeking to reopen proceedings to present new

evidence of his eligibility for relief may file only one

motion to reopen no later than 90 days after the date of the

final administrative decision, unless an exception applies. 

8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). 

It is undisputed that Singh’s most recent motion to reopen,

his fourth, was number-barred and untimely filed in 2013,

more than 17 years after he was ordered deported in

absentia. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i).

The statute and regulations governing motions to reopen

do not provide an exception to the applicable time and

numerical limitations based on purported eligibility for

adjustment of status, leaving the BIA’s sua sponte reopening

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authority as Singh’s only avenue for reopening. See Mahmood

v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“Because

Mahmood’s untimely motion to reopen was not excused by any

regulatory exception, his motion to reopen could only be

considered upon exercise of the Agency’s sua sponte

authority.”); Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA

2009). We lack jurisdiction to review the BIA’s decision

not to exercise its sua sponte reopening authority to permit

Singh to apply for adjustment of status based on the visa

petition filed by his wife because sua sponte reopening

under 8 C.F.R. § 1003.2(a) is “entirely discretionary.” Ali

v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED in part and in part DISMISSED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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